Ex Parte Albers

Patent Trial and Appeal Board

Jul 24, 2018

13765279 (P.T.A.B. Jul. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/765,279 02/12/2013
29344 7590 07/26/2018
ONELLO & MELLO LLP
Three Burlington Woods Drive
Suite 203
Burlington, MA 01803-4532
FIRST NAMED INVENTOR
Oliver Albers
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
LFT-029 1016
EXAMINER
PASCUA, JES F
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
07/26/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mail@omiplaw.com
docketing@omiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OLIVER ALBERS
Appeal2017-007519
Application 13/765,279 1
Technology Center 3700
Before PHILIP J. HOFFMANN, TARA L. HUTCHINGS, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's rejection of claims 1, 6, 7, 9, 11, 12, 15, 16, 18, and21-29. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
According to Appellant, the "invention relates to reusable containers
for holding or carrying food, and[,] more particularly[,] to portable,
1 According to Appellant, "[t]he real party in interest is ... Luft Industrie,
Inc." Appeal Br. 2.
Appeal2017-007519
Application 13/765,279
handheld[,] reusable pouches for carrying food." Spec. ,r 1. Claims 1, 9,
and 18 are the independent claims on appeal. We reproduce claim 1, below,
as illustrative of the appealed claims.
1. A flexible pouch, comprising:
a closed bottom section;
vertical walls extending up from the bottom section to
form an internal storage volume having an opening opposite the
bottom section; and
a closure mechanism including a plurality of projecting
members and a plurality of receiving members dispersed around
upper sections of the vertical walls proximal to and below the
opening, wherein, in a closed state, the projecting members and
the receiving members removably couple to at least partially
close the opening, and wherein:
the receiving members comprise stretchable holes
formed in the upper sections of the vertical walls, and
the projecting members comprise post and stop
combinations extending directly from an inner surface of
the vertical walls, wherein the stop has a greater width than
a corresponding receiving member stretchable hole and
comprises a compressible material that enables
compressed passage through the corresponding receiving
member stretchable hole.
2
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Application 13/765,279
REJECTIONS AND PRIOR ART2
The Examiner rejects the claims as follows:
I. claims 1, 6, 7, 21, 24, and 25 under 35 U.S.C. § I03(a) as
unpatentable over Schwarzkopf (US 3,376,618, iss. Apr. 9,
1968);
II. claims 9, 11, 12, 15, 16, 22, 26, and 27 under 35 U.S.C.
§ I03(a) as unpatentable over Schwarzkopf and Perrette
(US 2007/0031071 Al, pub. Feb. 8, 2007); and
III. claims 18, 23, 28, and 29 under 35 U.S.C. § I03(a) as
unpatentable over Wertheimer (US 1,434,576, iss. Nov. 7,
1922) and Miller (US 2,253,571, iss. Aug. 26, 1941).
ANALYSIS
Rejection I
As set forth above, independent claim 1 recites, in relevant part,
[a] flexible pouch ... comprising ... a closed bottom section[,]
vertical walls extending up from the bottom section to form an
internal storage volume[,] . . . and a closure mechanism
including a plurality of projecting members and a plurality of
receiving members[,] ... wherein ... the projecting members
comprise post and stop combinations extending directly from an
inner surface of the vertical walls.
Appeal Br., Claims App. (Claim 1 ). Appellant argues that the rejection is in
error because, among other reasons, "[i]n Schwarzkopf, ... head portion [3]
extends from a diaphragm of ... head member 1 attached to the bag, not
directly from an internal surface of a vertical wall of the bag" (id. at 9), and
2 In the Answer (Answer 2-3), the Examiner withdraws an indefiniteness
rejection from the Final Office Action (Final Action 2-3).
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Application 13/765,279
"Schwarzkopf requires that ... head portion 3 extend from ... diaphragm 4
such that the head portion does not extend beyond the outer surface of ...
edge portion 5. Therefore, ... head portion 3 could not [be modified to]
extend directly from the pouch of Schwarzkopf' (id. at 11 ).
In response, the Examiner finds that
Schwarzkopf . . . [discloses] that "each snap fastener may be
produced as an integral part of a handle or similar object"
( emphasis added). It is clear that Schwarzkopf contemplated the
snap fasteners may be integral with a portion of the bag other
than just the handle. It is this alternative construction of the snap
fastener disclosed in Schwarzkopf . . . [ upon which the
Examiner] relied . . . , in part, in the Final Office [ A ]ction.
F[igures] 8 and 10 of Schwarzkopf are further relied upon in the
Final Office [ A ]ction (page 4, first paragraph) as showing that it
was known in the art to extend an analogous projecting member
(33) directly from the inner surface of a diaphragm-like portion,
wherein the projecting member and the diaphragm-like portion
are integrally formed with the vertical walls of the pouch. It is
noted, that [ A Jppellant' s remarks are silent with respect to
F[igures] 8 and 10 of Schwarzkopf, as applied in the Final Office
[ A ]ction. Therefore, it is maintained that it would have been
obvious . . . to integrally form the projecting member and
diaphragm-like portions of the Figs. 3 and 4 embodiment in
Schwarzkopf with the vertical walls of the pouch, as in
Schwarzkopf ( column 3, lines 69-7 4 and the Schwarzkopf
embodiment of Figs. 8 and 10).
Answer 4--5. We agree with Appellant, however, that the figures the
Examiner references appear to "show an embodiment where the snap
fastener [that includes the head portion 3] ... is still a separate collection of
parts added to the bag. [These figures] do not include 'post and stop
combinations extending directly from an inner surface of the vertical walls,'
as in claim 1." Reply Br. 3. Appellant's Specification explains that
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Application 13/765,279
[i]t will be understood that when an element is referred to
as being "on" or "connected" or "coupled" to another element, it
can be directly on or connected or coupled to the other element
or intervening elements can be present. In contrast, when an
element is referred to as being "directly on" or "directly
connected" or "directly coupled" to another element, there are no
intervening elements present.
Spec. ,r 41 (emphasis added). Thus, consistent with Appellant's
Specification, the phrase "the projecting members comprise post and stop
combinations extending directly from an inner surface of the vertical walls"
recited in claim 1 (Appeal Br., Claims App. (Claim 1) (emphasis added))
does not encompass a snap fastener extending from a diaphragm of a handle
reinforcement that is heat-sealed to bag walls, as Schwarzkopf teaches. See,
e.g., Schwarzkopf col. 4, 11. 17--44. Therefore, based on the foregoing, we
do not sustain the rejection of independent claim 1, or the rejection of
claims 6, 7, 21, 24, and 25 that depend from claim 1.
Re} ection II
Independent claim 9 recites features similar to those discussed above
with respect to claim I-specifically, "[a] flexible food storage pouch ...
comprising ... a closed bottom section[,] vertical walls extending up from
the bottom section to form an internal storage volume[, and] ... a plurality
of projecting members distributed along and extending directly from an
inner surface of an upper section of the vertical walls." Appeal Br., Claims
App. (Claim 9); see also id. at Claim 1. Although the Examiner rejects
claim 9 based on Schwarzkopf in combination with Perrette, the Examiner
relies on Schwarzkopf to disclose the claimed projecting members extending
directly from vertical walls. See Final Action 7-9. Thus, we do not sustain
the rejection of claim 9, and we do not sustain the rejection of claims 11, 12,
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15, 16, 22, 26, and 27 that depend from claim 9, for the same reasons we do
not sustain the rejection of claim 1, supra.
Rejection III
Based on our review of the record, Appellant does not persuade us
that the Examiner errs in rejecting claims 18, 23, 28, and 29 as obvious
based on Wertheimer in combination with Miller. Thus, for the below
reasons, we sustain the rejection.
Appellant argues that "with the closed bottom of Wertheimer and the
open bottom of Miller, it is unclear how the references could be combined-
let alone a combination that would make obvious the claimed invention."
Appeal Br. 16. This argument is not persuasive of error, however, because
the Examiner clearly explains that rejection relies on
Wertheimer [ to disclose] the claimed invention, except for the
plurality of projecting members extending directly from an
external surface of upper sections of the front wall[, and relies
on] Miller [to disclose] that it is known in the art of rubber
pouches to extend a projecting member (19) directly from an
external surface of an upper section by integrally forming the
projecting member from the same material as the front wall of
the pouch.
Answer 9 ( citation omitted).
Appellant argues that "the combination of Wertheimer ( a heating bag)
and Miller ( a [ s ]yringe [b Jag) is improper and could only be combined
through impermissible hindsight. There is no suggestion, teaching, or
motivation in either reference for the combination, and it would not be
obvious ... to achieve the claimed flexible pouch." Appeal Br. 16. We
disagree with Appellant, however. The Supreme Court has rejected the rigid
requirement of demonstrating a teaching, suggestion, or motivation in the
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references to show obviousness. See KSR Int'! Co., v. Teleflex Co., 550
U.S. 398, 415-16 (2007); see also In re Ethicon, Inc., 844 F.3d 1344, 1350
(Fed. Cir. 2017) ("KSR directs that an explicit teaching, suggestion, or
motivation in the references is not necessary to support a conclusion of
obviousness."). The Examiner's proposal-to form Wertheimer's
projections integral with its pouch (Answer 9}-is disclosed by Miller, and
provides predictable results. See KSR 550 U.S. at 416 ("The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.").
Appellant argues that the rejection is in error because
[ c ]laim 18 requires "a plurality of projecting members extending
directly from an external surface of upper sections of the
front wall proximal to and below the opening, each of the
projecting members comprising a compressible stop." This does
not seem to be the case in Miller or Wertheimer. In Wertheimer,
button 7 appears to be added to the envelope though an inner
surface and an opening thereof. In F[igure] 4 of Miller, it appears
that button 19 also does not [ extend] "directly from an external
surface of upper sections of the front wall," as claimed.
Appeal Br. 1 7. Appellant does not persuade us of error, however. As
discussed above, the Examiner's rejection relies on
Wertheimer [ to disclose] the claimed invention, except for the
plurality of projecting members extending directly from an
external surface of upper sections of the front wall[, and relies
on] Miller [to disclose] that it is known in the art of rubber
pouches to extend a projecting member (19) directly from an
external surface of an upper section by integrally forming the
projecting member from the same material as the front wall of
the pouch.
Answer 9 (citation omitted). Appellant does not persuade us that these
findings are in error. Further, we agree with the Examiner that "it would
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have been obvious ... to integrally form the projecting members of
Wertheimer from the same material as the front wall of the pouch such that
the plurality of projecting members extend directly from the external surface
of upper sections of the front wall, as in Miller," for the reasons we set forth
above. See id.
Appellant argues that
Miller does not teach the claimed flexible pouch with its syringe
bag, which essentially includes an open bottom. Applicant
contends that the syringe bag of Miller used in the medical
profession is not analogous art, since one skilled in the art would
not consider Miller when making the claimed flexible pouch,
which explicitly has a closed bottom.
Appeal Br. 17. These remarks, however, are not sufficiently detailed to
persuade us that Miller is non-analogous art. It is not until the Reply Brief
that Appellant argues in detail why "the syringe bag of Miller and the
heating bag of Wertheimer are not analogous art to the flexible pouch of
claim 18. Even if Wertheimer were considered analogous art, Miller is not."
Reply Br. 5; see also id. at 5---6. But, "[a]ny argument raised in the [R]eply
[B]rief which was not raised in the [ A Jppeal [B]rief, or is not responsive to
an argument raised in the [E]xaminer' s [ A ]nswer, ... will not be considered
by the Board for purposes of the present appeal, unless good cause is
shown." 37 C.F.R. § 41.41(b)(2). Appellant does not show good cause why
the Reply Briefs detailed non-analogous-art argument should be considered.
Therefore, we treat Appellant's argument in the Reply Brief as untimely.
Appellant argues "claim 18 includes a plurality of projecting members
and a plurality of receiving members, not taught by Miller. That is, Miller
teaches a single button 19 and a single button hole 18." Appeal Br. 17. As
set forth above, however, the Examiner finds that it would have been
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Application 13/765,279
obvious to integrally form Wertheimer's multiple projecting members from a
same material as a pouch wall. Answer 9.
Thus, based on the foregoing, we sustain the rejection of independent
claim 18, and the rejection of claims 28 and 29 that depend from claim 18,
and which Appellant does not argue separately.
With respect to claim 23 that depends from claim 18, Appellant
argues that the rejection is in error because the claim "requires that 'the
pouch and closure mechanism, including the projecting members and the
receiving members, are formed from a single piece of reusable material.'
Wertheimer and Miller simply do not teach or make obvious a pouch
meeting such requirements." Appellant's argument is not persuasive, as we
agree with the Examiner "it would have been obvious ... to integrally form
the projecting members of Wertheimer from the same material as the front
wall of the pouch such that the plurality of projecting members extend
directly from the external surface of upper sections of the front wall, as in
Miller," for the reasons we set forth above. Answer 9. We further agree
with the Examiner that the rubber material forming the pouch in Wertheimer
is a reusable material. Id. at 13. Thus, based on the foregoing, we sustain
claim 23 's rejection.
DECISION
We REVERSE the Examiner's obviousness rejections of claims 1, 6,
7, 9, 11, 12, 15, 16, 21, 22, and 24--27.
We AFFIRM the Examiner's obviousness rejection of claims 18, 23,
28, and 29.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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